STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF STATE, )

DIVISION OF LICENSING, )

)

Petitioner, )

)

vs. ) Case No. 97-3049

)

DORMAL DEAN CAVILEE, )

)

Respondent. )

)

)

DEPARTMENT OF STATE, )

DIVISION OF LICENSING, )

)

Petitioner, )

)

vs. ) Case No. 97-3096

)

MARY LOUISE CAVILEE, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, William R. Cave, Administrative Law Judge, Division of Administrative Hearings, held a formal hearing in this matter on November 7, 1997, in Bartow, Florida.

APPEARANCES

For Petitioner: Kristi Reid Bronson, Esquire

Department of State, Division of Licensing

The Capitol, Mail station Four Tallahassee, Florida 32399-0250

For Respondent: Dormal Dean Cavilee, pro se

1900 Queens Terrace Southwest Winter Haven, Florida 33880

For Respondent: Mary Louise Cavilee, pro se

2768 Janie Trail

Auburndale, Florida 33823 STATEMENT OF THE ISSUES

Case No. 97-3049

1. Did Respondent conduct business as a private investigative agency during the period of January 1, 1997, through April 7, 1997, without a Class “A” Private Investigative Agency License in violation of Section 493.6118(1)(g), Florida Statutes?

2. Did Respondent perform the services of a private investigator during the period of January 1, 1997 through

April 7, 1997, without a Class “C” Private Investigator License in violation of Section 493.6118(1)(g), Florida Statutes?

Case No. 97-3096

1. Did Respondent conduct business as a private investigative agency during the period of January 1, 1997, through April 7, 1997, without a Class “A” Private Investigative Agency License in violation of Section 493.6118(1)(g), Florida Statutes?

2. Did Respondent perform the services of a private investigator during the period of January 1, 1997, through April 7, 1997, without a Class “C” Private Investigator License in violation of Section 493.6118(1)(g), Florida Statutes?

PRELIMINARY MATTERS

Case Number 97-3049

By a five-count Administrative Complaint dated May 27, 1997, and filed with the Division of Administrative Hearings (Division) on July 8, 1997, the Department of State, Division of Licensing (Department) is attempting to take disciplinary action against Respondent Dormal Cavilee for unlicensed activity. As grounds therefor, it is alleged that Respondent: (a) during the period January 1, 1997, to April 7, 1997, conducted or advertised the businesses of “Criminal Defense Investigations” and “Blue Moon P.I.” as private investigative agencies without a valid Class “A” Private Investigative Agency License in violation of Section 493.6118(1)(g), Florida Statutes, and Rule 1C-3.122(1), Florida Administrative Code; and (b) during the period of

January 1, 1997, to April 7, 1997, performed the services of a private investigator for three different individuals without a valid Class “C” Private Investigator License in violation of Section 493.6118(1)(g), Florida Statutes. Respondent filed an answer to the Administrative Complaint denying all allegations within the Administrative Complaint and filed an Election of Rights disputing the facts upon which the Department’s action was based and requesting a formal hearing. Subsequently, the Department dismissed Count II of the Administrative Complaint in that it was duplicative of Count I, and dismissed Count IV of the Administrative Complaint in that there was insufficient evidence to support the allegation.

Case Number 97-3096

By a three-count Administrative Complaint dated May 27, 1997, and filed with the Division on July 8, 1997, the Department is attempting to take disciplinary action Respondent Mary Cavilee for unlicensed activity. As grounds therefor, it is alleged that Respondent: (a) during the period January 1, 1997, to April 7, 1997, conducted or advertised the business of “Criminal Defense Investigations” as a private investigative agency without a valid Class “A” Private Investigative Agency License in violation of Section 493.6118(1)(g), Florida Statutes, and Rule 1C-3.122(1), Florida Administrative Code; and (b) during the period January 1, 1997, to April 7, 1997, performed the services of a private investigator for two different individuals without a valid Class “C” Private Investigator License in violation of Section 493.6118(1)(g), Florida Statutes. The Respondent filed an answer to the Administrative Complaint denying all allegations and filed an Election of Rights disputing the facts upon which the Department’s action was based and requesting a formal hearing.

The Department dismissed Count III of the Administrative Complaint in that there was insufficient evidence to support the allegation.

The cases were consolidated for hearing. At the hearing, the Department presented the testimony of Robert Norgard, Frank Bedingfield, and Geoffrey Allan Foster. Department’s Exhibit One was received as evidence. Respondents presented the testimony of Deborah Wells but did not offer any documentary evidence.

A transcript of this proceeding was filed with the Division on November 24, 1997. The Department timely filed its proposed recommended order and the Respondents timely filed what they have titled “Argument.”

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made:

1. The Department is the agency of the State of Florida charged with the responsibility of investigating and enforcing the provisions of Chapter 493, Florida Statutes.

   Case Number 97-3049

   
   

2. Respondent Dormal Cavilee was not licensed as a private investigator in the State of Florida and did not possess a State of Florida Class “C” Private Investigator license at any time material to this proceeding.

3. Respondent Dormal Cavilee was not licensed as a private investigative agency in the State of Florida and did not possess a State of Florida Class “A” Private Investigative Agency license at any time material to this proceeding.

4. During the period of January 1, 1997, to April 7, 1997, Respondent Dormal Cavilee performed private investigations, as defined in Section 493.6101(17), Florida Statutes, for Geoffrey

   A. Foster, attorney-at-law and for Dwight M. Wells or Deborah Wells (Wells), attorneys at law.

5. While performing private investigations for Foster and Wells during the period of January 1, 1997 to April 7, 1997, Respondent Dormal Cavilee was under contract and was not solely and exclusively employed by Foster or by Wells. Additionally, an employer-employee relationship did not exist between Foster or Wells and Respondent Dormal Cavilee in that neither Foster nor Wells deducted federal income tax or social security tax, or furnished any health or retirement benefits to Respondent Dormal Cavilee.

   
   

   Case Number 97-3096

   
   

6. Respondent Mary Cavilee was not licensed as a private investigator in the State of Florida and did not possess a State of Florida Class “C” Private Investigator license at any time material to this proceeding.

7. Respondent Mary Cavilee was not licensed as a private investigative agency in the State of Florida and did not possess a State of Florida Class “A” Private Investigative Agency license at any time material to this proceeding.

8. During the period of January 1, 1997, to April 7, 1997, Respondent Mary Cavilee performed private investigations, as defined in Section 493.6101(17), Florida Statutes, for Dwight M. Wells or Deborah Wells (Wells), attorneys at law.

9. While performing private investigations for Wells during the period January 1, 1997, to April 7, 1997, Respondent Mary Cavilee was under contract and was not solely and exclusively employed by Wells. Additionally, an employer-employee relationship did not exist between Wells and Respondent Mary Cavilee in that Wells did not deduct federal income tax or social security tax, or furnish any health or retirement benefits to Respondent Mary Cavilee.

   Case Numbers 97-3049 and 97-3096

   
   

10. A billing statement from Respondent Dormal Cavilee and Respondent Mary Cavilee dated March 1, 1997, to Dwight M. Wells,

    shows the date of investigation, the person performing the investigation (either Dormal Cavilee or Mary Cavilee), the amount of time involved in performing the investigation, the hourly rate and the total amount charged. The billing statement shows that the investigations are related to the defense of Grady Wilson in Case Number CF93-5094-A1XX, a criminal case in Polk County, Florida. Nothing on the billing statement indicates that it is a statement for private investigations furnished by a private investigative agency referred to as Criminal Defense Investigations.

11. The Motion for Payment of Costs filed by Dwight M. Bell in Case Number CF93-5094-A1XX provides in pertinent part:

    That the following expense was incurred during the investigation, discovery process, pre-trial preparation and trial of this cause:

    
    

    Criminal Defense Investigations $2,500.00

    
    

12. Both the Order Approving Additional Funds for Investigation Costs dated March 3, 1997, and the Order Approving Motion for Payment of Costs refer to the payments as payment for investigations performed by criminal defense investigations.

13. Neither Respondent Dormal Cavilee nor Respondent Mary Cavilee advertised as providing, or engaged in the business of furnishing private investigations, notwithstanding language in the motion and orders referred to above which was apparently referring to the type of services being performed rather than

    private investigations being furnished by a private investigative agency.

14. On April 7, 1997, a Cease and Desist Order was issued to both Respondent Dormal Cavilee and Respondent Mary Cavilee. The record indicates that both Respondent Dormal Cavilee and Respondent Mary Cavilee honored the Cease and Desist Order and cease performing any private investigations other than in an employer-employee relationship with Wells. Chapter 493, Florida Statutes, did not apply to such activity. See Section 493.6102, Florida Statutes.

15. Neither Respondent Dormal Cavilee nor Respondent Mary Cavilee attempted to “cover-up” any of their activities when questioned by the investigator for the Department.

16. Respondents knew or should have known that their activity in regards to investigations for Foster and Wells required that they be licensed under Chapter 493, Florida Statutes. However, there appeared to be some confusion on the part of the Respondents as to whether their relationship with the defense attorneys required that they be licensed under Chapter 493, Florida Statutes.

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding pursuant to Section 120.57(1), Florida Statutes.

18. Sections 493.6101(2), (6), (15), and (16), Florida Statutes, provide in pertinent part:

(2) “Person” means any individual, firm, company, agency, organization, partnership, or corporation.

(6) “Advertising” means the submission of bids, contracting, or making known by any public notice or solicitation of business, directly or indirectly, that services regulated under this chapter are available for consideration.

1. “Private investigative agency” means any person who, for consideration, advertises as providing or is engaged in the business of furnishing private investigations.

2. “Private investigator” means any individual who, for consideration, advertises as providing or performs private investigations. . . . (Emphasis Furnished.)

1. Sections 493.6201(1) and (5), Florida Statutes, provide in pertinent part:

   1. Any person, firm, company, partnership, or corporation which engages in business as a private investigative agency shall have a Class "A" license.

      * * *

      (5) Any individual who performs the services of a private investigator shall have a Class "C" license.

      
      

2. Sections 493.6118(1)(g) and (2), Florida Statutes, provide in pertinent part:

   1. The following constitute grounds for which disciplinary action specified in subsection (2) may be taken by the department against any licensee, agency, or applicant regulated by this chapter, or any unlicensed person engaged in activities regulated under this chapter.

(g) Conducting activities regulated under this chapter without a license or a revoked or suspended license.

When the department finds any violation of subsection (1), it may do one or more of the following:

(c) impose an administrative fine not to exceed $1,000 for every count or separate offense. (Emphasis Furnished.)

30. In a disciplinary proceeding, the burden is upon the regulatory agency to establish facts upon which its allegations of misconduct are based. Balino vs. Department of Health and Rehabilitative Services, 348 So. 2d 349 (1st DCA Fla. 1977). The

Department must prove the material allegations of the Administrative Complaint by clear and convincing evidence. Department of Banking and Finance, Division of Securities and Investor Protection vs. Osborne Stern and Company, 670 So. 2d 932 (Fla. 1996); Ferris vs. Turlington, 510 So. 2d 292 (Fla. 1987).

The Department has shown by clear and convincing evidence that the Respondents did perform private investigations during the period of January 1, 1997, to April 7, 1997, which would have required licensing under Chapter 493, Florida Statutes, without the Respondents being licensed and possessing a Class "C" Private Investigator license. However, the Department has failed to show by clear and convincing evidence that the Respondents' activity came within the definition of a Private Investigative Agency

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law and review of Rule 1C-3.113, Florida Administrative Code, concerning disciplinary guidelines, range of penalties, and aggravating and mitigating circumstances, it is recommended that the Department in Case Number 97-3049 enter a final order: (a) dismissing Counts I, II, and IV of the Administrative Complaint;

(b) finding Respondent Dormal Cavilee guilty of the violations charged in Count III and V of the Administrative Complaint, assess an administrative fine in the amount of $300.00 for each count for a total of $600.00. It is further recommended that the Department in Case Number 97-3096 enter a final order dismissing

Counts I and III of the Administrative Complaint; and finding Respondent Mary Cavilee guilty of the violations charged in Count II of the Administrative Complaint, assess an administrative fine in the amount of $300.00.

DONE AND ENTERED this 2nd day of January, 1998, in Tallahassee, Leon County, Florida.

WILLIAM R. CAVE

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6947

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of January, 1998.

COPIES FURNISHED:

Hon. Sandra B. Mortham Secretary of State

The Capitol

Tallahassee, Florida 32399-0250

Don Bell General Counsel

The Capitol, Plaza Level-02 Tallahassee, Florida 32399-0250

Kristi Reid Bronson, Esquire Department of State,

Division of Licensing

The Capital, Mail Station Four Tallahassee, Florida 32399-0250

Dormal Dean Cavilee

1900 Queens Terrace Southwest Winter Haven, Florida 33880

Mary Louise Cavilee 2768 Janie Trail

Auburndale, Florida 33823

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 97-003049

Orders for Case No: 97-003049